ALJDEC - Licensing
2023A-02320-CHC-ROC · Registrar of Contractors · 2023-07-17
IN THE OFFICE OF ADMINISTRATIVE HEARINGS
Richard Rindahl
COMPLAINANT
v.
Hornbeck Enterprises LLC
License No. ROC 326383,
RESPONDENT
No. 2023A-02320-CHC-ROC
ADMINISTRATIVE LAW JUDGE DECISION
HEARING: June 27, 2023. 1:00 P.M.
APPEARANCES: Complainant Richard Rindahl appeared on his own behalf; Sean Hornbeck, Owner/operator, appeared on behalf of Respondent
ADMINISTRATIVE LAW JUDGE: Roger Geddes
_____________________________________________________________________
FINDINGS OF FACT
Background and Procedure
1. Hornbeck Enterprises, LLC, is the holder of License Number 326383 issued by the Registrar of Contractors (Registrar).
2. On or about February 24, 2023, Richard Rindahl (Complainant) filed a Complaint against Respondent with the Registrar alleging abandonment and poor work in connection with flooring work performed by Respondent at a residence in Gilbert, Arizona (“project”).
3. The Registrar performed an inspection of the project on April 4, 2023. Thereafter, the Registrar issued a Directive, dated April 4, 2023, requiring Respondent to correct various alleged deficiencies in Respondent’s work by April 25, 2023 (“Directive deadline”), as follows:
Compliance Item: 1 – Stairs tread were not installed properly. Overhang is too
large, adhesive is not holding. Stair tread does not align at inner corners.
Investigator’s Observation: Verified. I observed the stair treads by the entry way and leading from the kitchen to dining room. Both sets of stairs had loose treads and a total of three cracked treads. The fronts of the treads were hollow and moved when stepped on or touched. The joint where the stairs change direction by the kitchen are not aligned and are filled with excessive caulking. Contractor should correct by appropriate means.
Governing Rule: ARS 32-1154(A)(3) Poor Workmanship namely Rule R4-9-108
Compliance Item: 2 – Adhesive used to glue down stairs was tracked all over
main walkway through home.
Investigator’s Observation: Verified. I observed about three spots with glue on the surface of the flooring in front of the carpeted stairs. The Complainant stated they had cleaned up several other spots. Contractor should correct the remaining spots by appropriate means.
Governing Rule: ARS 32-1154(A)(3) Poor Workmanship namely Rule R4-9-108
Compliance Item: 3 – Custom trim work was installed poorly with misaligned
joints and clearly visible imperfections. Trim by pantry left unfinished.
Investigator’s Observation: Verified. I observed the baseboards throughout the home and there were several gaps at joints, misaligned joints, unpainted or missing caulking in areas and excessively caulked areas along with paint drips. I also observed the toe kick in the kitchen falling off and no quarter round installed in the kitchen. Contactor should inspect the entire trim/baseboard installation and correct the above by appropriate means.
Governing Rule: ARS 32-1154(A)(3) Poor Workmanship namely Rule R4-9-108
4. After being informed by both Complainant and Respondent that no corrective work had been done, the Registrar then issued a Citation to Respondent, dated May 2, 2023, for the alleged violation of the following:
a. A.R.S. § 32-1154(A)(3) (violation of Arizona Administrative Code Rule 4-9-108(a)) for failure to perform work in a professional and workmanlike manner);
b. A.R.S. § 32-1154(A)(22) (failure to perform corrective action without valid justification).
5. The Registrar referred the matter to the Office of Administrative Hearings, an independent state agency, for an evidentiary hearing, and issued a Notice of Hearing for June 27, 2023, at 1:00 P.M.
6. At the June 27, 2023, hearing, Complainant Richard Rindahl testified on his own behalf. Sean Hornbeck testified on behalf of Respondent. Doug Barrett, the Registrar Investigator (Investigator), testified on behalf of the Registrar. Neither party submitted exhibits.
7. The Investigator testified on behalf of the Registrar consistently with his findings contained in the Directive and his job inspection notes. Specifically, he testified that Respondent informed him that it was no longer doing business in Arizona and that it therefore could not perform corrective work.
8. Complainant Richard Rindahl testified, as herein relevant to the Citation, that the job was poorly done and that he has been ordering new materials and that he just wants the job done correctly.
9. Sean Hornbeck testified on behalf of Respondent, as herein relevant to the Citation, that he could not do the corrective work himself because he no longer lived in Arizona.
10. Administrative notice is taken of the Registrar’s public website which reflects Respondent was first issued the subject license on October 1, 2019, that there are two open cases, and one disciplined case, Case No. 2023A-02443, which resulted in a suspension.
CONCLUSIONS OF LAW
1. The Registrar has jurisdiction over this matter, pursuant to A.R.S. § 32-1101, et seq., which authorizes the Registrar to impose disciplinary sanctions against licenses for violations of A.R.S. § 32-1154.
2. The burden of proof at an administrative hearing falls to the party asserting a claim, right, or entitlement and the standard of proof on all issues in these matters is by preponderance of the evidence. See Arizona Administrative Code Rule 2-19-119.
3. To warrant sanctions by the Registrar, Complainant must demonstrate by a preponderance of the evidence that Respondent violated the statutory section cited. Proof by a “preponderance” means that “the evidence is sufficient to persuade the finder of fact that the proposition is more likely true than not.” In re: Arnold and Baker Farms, 177 B. R. 648 (9th Cir. BAP (Ariz.) 1994). See also Culpepper v. State of Arizona, 187 Ariz. 431, 930 P.2d 508 (App. 1996). It is “evidence which is of greater weight or more convincing than the evidence which is offered in opposition to it; that is, evidence which as a whole shows that the fact sought to be proved is more probable than not.” BLACK’S LAW DICTIONARY 1182 (Rev. 6th ed. 1990).
4. A.R.S. § 32-1154(A) includes in pertinent part among the grounds for suspension, revocation, or other disciplinary action against a contractor’s license, the following that were included in the Citation:
3. Violation of any rule adopted by the registrar.
...
22. Failure to take appropriate corrective action to comply with his chapter or with rules adopted pursuant to this chapter without valid justification within a reasonable period of time after receiving a written directive from the registrar.....
5. With regard to the “violation of any rule adopted by the registrar” under A.R.S. § 32-1154(A)(3) referenced in the Citation, the rule allegedly violated in this case is Arizona Administrative Code Rule 4-9-108(A) which requires that “[a] contractor shall perform all work in a professional and workmanlike manner,...”
6. A.R.S. § 32-1154(A)(3). Complainant has presented sufficient evidence to establish that Respondent failed to perform work in a professional and workmanlike manner in violation of Arizona Administrative Code Rule 4-9-108(a). Respondent did not dispute the existence of the Directive items.
7. A.R.S. § 32-1154(A)(22). Complainant has presented sufficient evidence to establish that Respondent failed to perform corrective action without a valid justification. Respondent indicated it no longer resided in Arizona to do corrective work. However, such does not constitute a valid justification for not performing corrective work prior to the deadline.
8. Accordingly, the Tribunal finds that Complainant has established that Respondent’s license should be disciplined for a violation of § 32-1154(A)(3) and A.R.S. § 32-1154(A)(22).
RECOMMENDED ORDER
Based on the foregoing, it is recommended that on the effective date of this Order, Hornbeck Enterprises, LLC’s, License Number 326383 is suspended for five (5) days.
IT IS FURTHER RECOMMENDED that pursuant to A.R.S. § 32-1154(E), Respondent must pay to the Registrar a civil penalty of $500.00 in certified funds on or before 30 days from the effective date of this Order.
IT IS FURTHER RECOMMENDED that if Respondent fails to pay the entire amount of the civil penalty on or before thirty days following the effective date of the Registrar’s final order, the Registrar revoke Respondent’s license, effective on such deadline date. No future license shall be issued to any entity consisting of persons associated with Respondent, as defined in A.R.S. § 32-1101(A)(5), unless Respondent tenders payment of the outstanding prior civil penalty.
Pursuant to A.R.S. § 41-1092.08(I), the licensee may accept the Administrative Law Judge Decision by advising the Office of Administrative Hearings in writing not more than ten (10) days after receiving the decision. If the licensee accepts the Administrative Law Judge Decision, the decision shall be certified as the final decision by the Office of Administrative Hearings.
In the event of certification of the Administrative Law Judge Decision by the Director of the Office of Administrative Hearings, the effective date of the Order will be forty (40) days from the date of that certification.
Done this day, July 17, 2023.
/s/ Roger Geddes
Administrative Law Judge
Transmitted by either mail, e-mail, or facsimile to:
Martín Quezada, Director
c/o Doug Barrett, Investigator
Registrar of Contractors
1700 W. Washington St., Ste. 105
Phoenix, AZ 85007
[email redacted]
Hornbeck Enterprises LLC, Respondent
5237 S. Cobalt
Mesa, AZ 85212
[email redacted]
Richard Rindahl, Complainant
3739 E. Indigo Bay Ct.
Gilbert, AZ 85234
[email redacted]
By: OAH Staff